DEBRA R BERRY, Applicant

GENERAL MOTORS ACCEPTANCE CORP, Employer

NATIONAL UNION FIRE INS CO OF PITTSB, Insurer

The employer and its insurance carrier (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on January 17, 2001. The applicant submitted an answer and cross-petition. Briefs were submitted by the parties. At issue are whether the applicant sustained an injury arising out of and in the course of her employment with the employer; and if so, whether she is entitled to permanent partial disability and payment of outstanding medical expenses (including a special mattress, a Jacuzzi, and exercise equipment).

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby reverses her Findings and Interlocutory Order. The commission makes the following:

The applicant, whose birth date is April 11, 1959, was employed in an office job with the employer. The employer leased office space on the second floor of a large building, whose owner leased space to other businesses. On January 21, 1997, the applicant was leaving work for the day when she slipped and fell on the walkway just outside the front doors of the building. She landed on her buttocks and experienced sharp pains in her right back and buttocks. The next day she was limping but she went to work.

On February 10, 1997, she saw Dr. Dickmeyer with tenderness noted over her right sacroiliac joint. There was no ecchymosis or discoloration. Dr. Dickmeyer diagnosed "sacroiliac injury right," and referred the applicant to physical therapy. The physical therapy helped somewhat, but continuing right-sided low back pain led to a referral to Dr. T. J. Nordland, an orthopedist. Dr. Nordland first saw the applicant on April 2, 1997. His diagnostic impression was mechanical low back pain and he prescribed continued physical therapy. He also injected the applicant's low back with Hydrocortisone Acetate and Marcaine, prescribed anti-inflammatories, and prescribed massage therapy.

The applicant's low back symptoms continued and Dr. Nordland's partner, Dr. W. D. Moritz, joined in her treatment beginning on January 6, 1998. Dr. Moritz diagnosed myofascitis and chronic low back syndrome. He continued physical therapy and medications. On August 6, 2000, Dr. Moritz completed a functional capacities evaluation which indicated a healing plateau had been reached and the applicant could lift up to 10 pounds and sit or stand for five hours each out of an 8-hour work day. On August 1, 2000, Dr. Moritz prescribed exercise equipment and a Jacuzzi for the applicant's back. On May 18, 1999, he gave a final diagnosis of chronic low back syndrome secondary to trauma, with at least 10 percent permanent partial disability and probable need for future physical therapy and office visits, all attributable to the work injury of January 21, 1997. These opinions were reiterated in a WC-16-B completed by Dr. Moritz on March 20, 2000.

On February 24, 2000, Dr. Moritz had also referred the applicant to Dr. Keith Kahle, an orthopedic surgeon, for evaluation. Dr. Kahle noted that the applicant had complained of persistent, right-sided low back pain, but all the diagnostic studies were normal. These included lumbar MRI, bone scan, EMG studies, x-rays, and CT scan. Dr. Kahle indicated that he was at a loss to explain the applicant's pain and he had no recommendation for surgery or treatment other than what she had received. He offered no opinion with regard to whether her pain was related to the work injury.

The applicant was also seen by Dr. Ivy Dreizin, a neurologist, beginning sometime in 1999. Dr. Dreizin prescribed Neurontin for the applicant's pain. She indicated that she did not think the applicant's pain was primarily neurogenic, but did not offer a diagnosis.

On October 21, 1997, at the insurance carrier's request, the applicant was examined by Dr. James Gmeiner. He noted that she had fallen down some steps in September of 1988, and landed on her tailbone. Medical correspondence dated March 15, 1989, described right-sided superior iliac spine (low back) pain since that time. The medical diagnosis was myofascitis, and injections and physical therapy were prescribed. There was also a record of low back pain after being struck by a horse on November 5, 1999. Dr. Gmeiner opined that the applicant gave exaggerated pain responses in his exam. He diagnosed a soft tissue strain of the lumbar spine on January 21, 1997, which should have healed by at least April 2, 1997. He found no permanent disability and no need for additional medical treatment.

The employer argues that the sidewalk on which the applicant fell was not part of its premises, because as a mere lessee of office space, it exercised no dominion or control over the walk. However, the applicant was on leased "site" property when injured, property to which employees of the employer had a common-use right to use to walk to the adjacent parking lot. In Patricia Hake v. Arthur Gallagher and Co., W.C. Claim No. 09-09612 (LIRC 11/17/89), it was found that the employer's premises included the sidewalk outside the building in which the employer leased space. This is consistent with Professor Arthur Larson's view in Larson's Worker's Compensation Law (Vol. 1, sec. 13.04(3), 2000):

"When the place of employment is a building, it is not necessary that the employer own or lease the place where the injury occurred. It is sufficient if the employer has some kind of right of passage . . ."

As noted in the Hake case, the Wisconsin Supreme Court has often adopted Professor Larson's views in areas of the law not resolved by previous Wisconsin court decisions. The most reasonable conclusion, based on the facts of the applicant's case, is that the common-use walk just outside the building in which the employer leased its offices was part of the employer's premises for Worker's Compensation purposes.

When the commission consulted with the administrative law judge regarding her credibility impressions of the applicant, she indicated that she found the applicant to have been credible when relating her ongoing low back symptoms. The administrative law judge acknowledged that the medical diagnoses were vague, but concluded that the applicant was a slow healer, and that she had difficulty recovering from what might have resulted in only minor, temporary injury to other individuals.

The commission was persuaded by the negative results of the objective medical testing, the vague diagnoses, Dr. Kahle's indication that he was at a loss to explain the applicant's pain, and Dr. Gmeiner's opinion including his observation of exaggerated pain responses. Dr. Gmeiner credibly opined that the applicant sustained a soft tissue strain of the lumbar spine on January 21, 1997. Although Dr. Gmeiner opined that a healing plateau should have been reached by April 2, 1997, he did not examine the applicant until October 21, 1997. His opinion that the applicant had reached a healing plateau by October 21, 1997, is accepted as credible. However, his retroactive assessment of healing is not accepted as credible, because he did not see the applicant during that earlier period. It is inferred from the evidence that any low back symptoms the applicant experienced after October 21, 1997, were attributable to a medical condition or conditions unrelated to the work injury of January 21, 1997.

It is unclear from the applicant's WC-3 whether any of the outstanding amounts due to any of the providers, or as reimbursement to the applicant, were attributable to treatment received on or before October 21, 1997. If there are such outstanding payments due, the applicant should provide to the insurance carrier a listing of such expenses and medical documentation supporting their attribution to the work injury. The insurance carrier should thereupon make immediate payment of such expenses.

Dr. Gmeiner's opinion that the applicant sustained no permanent disability attributable to the work injury of January 21, 1997, is credible.

The Findings and Interlocutory Order of the administrative law judge are reversed. The applicant's claim for additional compensation is dismissed, except with respect to any outstanding medical bills incurred on or before October 21, 1997, which can be shown to have been attributable to the work injury of January 21, 1997. Jurisdiction is reserved only with respect to such outstanding medical bills, if any.

Dated and mailed May 31, 2001
berryde . wrr : 185 : 8  ND § 3.17

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

cc: 
Attorney Russell W. Devitt
Attorney James G. Budish

Appealed to Circuit Court. Affirmed January 7, 2002. Appealed to Court of Appeals.

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